The Record
JOURNAL•OF•THE•APPELLATE• PRACTICE•SECTION
Volume XVI, No. 9
INSIDE:
Outgoing Message from Past-
Appellate Section Chair ......2
The Appellate Practice
Retreat’s New Motto: Divide
and Conquer! .......................4
AJEI Summit Conference ...4
Comments from Chief Justice
Peggy A. Quince on Advocacy:
for the Client, the Courts, and
the Profession ......................6
An Overview of the Selection
of Florida’s Judiciary ...........9
Justice Canady: A Wealth of
Diverse Experience, A Deep
Respect For the Law............10
Reflections from the Florida
Supreme Court: An Interview
with Justice Ricky Polston .11
Florida Supreme Court
Historical Society - An
Important Player in the
Independence of the
Judiciary ............................12
Justice Labarga: An Appellate
Practitioner Now “Simply
Doing ‘Justice’” ....................15
Appellate Section Mini -
Retreat RSVP form ...........16
Justice Perry: Making Lives
Better For All Floridians ......17
An Afternoon With The
Supreme Court ..................20
www.flabarappellate.org
THE FLORIDA BAR
Message from the Chair
By Dorothy F. Easley
A. Introductions
As the new Chair of
the Appellate Practice
Section, I am proud to
introduce to you the of-
ficers of our Section for
2009-10. These profes-
sionals will continue
the tradition of excel-
lent leadership and
service to our Section members, to The
Bar and to the community. Our officers
for the coming year are:
Chair-Elect, Former Florida Su-
preme Court Justice Raoul G. Can-
tero, III. Raoul left us as Section Vice
Chair to serve on the Florida Supreme
Court. Losing him made us both thrilled
for him and sad for us. We were happy
to have him back last year, resuming
his position as Vice Chair, and he is now
moving on to Chair-Elect and, in that role,
making sure that I keep us on track.
Vice Chair, Matt Conigliaro. Matt
has done a tremendous job for the Sec-
tion as Treasurer and Secretary-Trea-
surer. No matter the position, Matt’s
work product is always superb. For years,
he has worked tirelessly for the Section,
doing everything from CLE to our Section
bylaws and budget. He approaches our
Section issues with the rigors of drafting
an appellate brief, all while maintaining
a collegial, modest demeanor.
Secretary-Treasurer, Jack Reiter.
Jack came to us as a former Chair of the
Appellate Court Rules Committee. Since
Summer 2009
then, he has worked tirelessly for three
years (what probably feels like ten years
to Jack) as Editor-in-Chief of The Record,
Journal of the Appellate Practice Section.
We look forward to Jack filling Matt’s
very large shoes, to take command of our
Section budget, conduct thorough bylaw
analyses, and ensure strong Section re-
cordkeeping.
I look forward to working with our Sec-
tion leadership and all of our members
to serve our members and enhance our
visibility in The Bar and the larger legal
community.
B. This year, frugality, innovation
and education are the new black.
Let’s be honest. We’ve watched our “401
Ks” dwindle “101 Ks,” and seen upheavals
in the credit and job markets. Now the
dust is settling. I hear colleagues speak
with anxiety over what the future holds
for them. I suggest to them to look at his-
tory as one of the best predictors of our
future. History teaches us that those who
have prevailed during economic crises
have shared three attributes: innovation,
frugality and continuing education.
During the Depression, studies show
that those who truly excelled took risks,
educated themselves more, and learned
and produced innovative products and
services. Take, for example, my great-
great grandfather, the second son of a
tailor from southern Ireland, which is a
nice way of saying that he was dirt poor.
Objectively, he should have stayed put.
See “Message from the Chair” page 8
 MESSAGE FROM THE CHAIR
from previous page
tice Section is delighted to co-host
with the ABA the Welcome Reception
at the national 2009 AJEI Appellate
Summit in Orlando this November.
In addition to the Welcome Reception,
we encourage all to register for the
Summit, which is a wonderful edu-
cational and networking opportunity
for our appellate lawyers to attend
and participate. We have more on our
AJEI Appellate Summit in this Issue
of The Record.
Also to that end, Programs Com-
mittee Chair June Hoffman is leading
the way for our Appellate Practice
An Overview of the Selection of Florida’s
Judiciary
By Diana L. Martin1 and Donna M. Krusbe2
Whoever said ap-
pellate law is boring
hasn’t been paying
attention to the ju-
dicial appointment
process in the past
several months. The
political tug of war
between the gover-
nor, the judicial nominating commis-
sions, and the appellate courts is as
exciting as it gets. Well, maybe not
as exciting as it gets, but at least in-
teresting enough to prompt a review
and discussion of the relevant con-
stitutional and statutory provisions
that form the backdrop for this recent
political wrangling.
As appellate prac-
titioners, we know
that the governor
appoints both the
justices that sit on
Florida’s Supreme
Court and the judges
that sit on Florida’s
District Courts of
Appeal. The governor’s authority to
make these appointments originates
in Article V, §11 of the state constitu-
tion, which provides: “Whenever a
Section co-hosting of the Welcome
Reception with the ABA AJEI. Your
participation in the Welcome Recep-
tion is an opportunity to highlight
your firm to a national audience of
prestigious federal and state ap-
pellate jurists, staff attorneys and
practitioners. Your participation also
demonstrates that we take an active
role to fund educational program-
ming and scholarships to increase
judicial attendance at a time when
court budgets are very restricted.
Appellate lawyers and judges share
the same desire to make appellate jus-
tice more effective for themselves, the
parties, and society in general. Our
members have been active in scholar-
ship and service in appellate law, and
vacancy occurs in a judicial office to
which election for retention applies
[i.e., appellate judges],3 the governor
shall fill the vacancy by appointing...
one of not fewer than three persons
nor more than six persons nominated
by the appropriate judicial nomi-
nating commission.”4 This provision
expressly limits the governor’s au-
thority by allowing appointment of
only nominees first certified by the
JNC for the appropriate jurisdiction.
Because this is a relatively recent
development in Florida law, it is im-
portant to understand the histori-
cal and constitutional basis for the
governor’s authority, the role of the
JNCs, and the interplay between the
two in selecting Florida’s judiciary.
History of Judicial Election/
Selection in Florida
Florida’s first constitution called
for the election of supreme court
justices and circuit court judges “by
the concurrent vote of a majority of
both houses of the general assem-
bly.”5 Circuit judges were elected for
an initial term of five years, while
supreme court justices were “elected
for the term of and during their good
behavior.”6 In an effort to create an
9
we remain dedicated to advancing
appellate practice and supporting
our appellate judiciary. I thank each
of you for sharing your professional
activities with us for inclusion in The
Florida Bar Journal and The Record,
and for your continued commitment
to advancing high-quality appellate
practice and pro bono service to the
larger community. Through doing
more with less, thinking “outside the
box,” and aggressive commitment to
appellate education, the coming year
promises to be an expansion of our
Section, to promote greater services
for our members and the community,
and to capitalize on the expertise of
all involved.
independent supreme court, the con-
stitution was amended in 1851 to cre-
ate eight-year terms for both judges
and justices.7
The 1865 Constitution provided
for gubernatorial appointment of su-
preme court justices, with senate
consent8 and election of circuit judges
“by the qualified electors of each of
the respective judicial circuits.”9 Just
three years later, the constitution
was amended to enlarge the power
of Florida’s governor so that he could
appoint both supreme court justices
and circuit court judges.10 The su-
preme court justices could hold of-
fice for life, but, again, only “during
good behavior.”11 This broad grant
of power and influence over Florida’s
judiciary was criticized by proponents
of judicial independence.12
The governor’s power was again
limited in Florida’s Constitution of
1885, which provided that supreme
court justices would be elected by the
people.13 But the governor retained
the authority to appoint circuit court
judges until 1942 when the constitu-
tion was amended to require the elec-
tion of circuit court judges as well.14
See “Overview” page 24
 OVERVIEW
from page 9
In 1957, Florida’s district courts
were created to provide an interme-
diate level of appellate review.15 The
first judges for the district courts
of appeal were appointed by the
governor.16 Subsequent vacancies
on the district courts were filled by
general election in the same way
supreme court justices and circuit
court judges were elected.17
The direct election of all jus-
tices and judges in Florida led to
abuses within the judicial system.18
“Within [a period of] four years, four
out of seven justices on the Florida
Supreme Court left office through
resignation or retirement after a
scandal involving extensive investi-
gations, public exposure, and threats
of impeachment.”19 This prompted
constitutional amendments in the
1970s that resulted in a merit selec-
tion and retention system for appel-
late judges.
Judicial Nominating Commis-
sions
In 1971, Governor Reubin O’D.
Askew created, by Executive Order,
judicial nominating councils to as-
sist in judicial selection.20 Subse-
quently, by constitutional revision in
1973, the councils were supplanted
by separate JNCs, one for the su-
preme court and one for each district
and circuit court.21 The JNCs were
created “to screen applicants for
judicial appointments within their
respective jurisdictions and to nomi-
nate the . . . best qualified persons to
the Governor for his appointment.”22
They are an arm of the executive
branch, established “to insure that
politics would not be the only cri-
teria in the selection of judges, and
to increase generally the efficiency
of the judicial appointive process.”23
“The purpose of the [JNC] is to take
the judiciary out of the field of politi-
cal patronage and provide a method
of checking the qualifications of per-
sons seeking the office of judge.”24
As the Florida Supreme Court ex-
plained early on, “The purpose of
such nominating commission . . . was
to eliminate that kind of selection
which some people referred to as
‘picking a judge merely because he
was a friend or political supporter
of the Governor’ thereby providing
this desirable restraint upon such
appointment and assuring a ‘merit
selection’ of judicial officers.”25
The 1973 revision to the Flori-
da Constitution elevated JNCs to
“constitutional statu[s] and perma-
nence,” making their nominations
“binding upon the Governor, as he
is under a constitutional mandate to
appoint ‘one of [the] persons nomi-
nated by the appropriate [JNC].”26
Since 1976, the governor has been
required to make all judicial ap-
pointments from a list of nomi-
nees presented by the appropriate
JNC.27
The Legislature is charged with
the task of establishing the makeup
of the JNCs.28 Currently, each JNC
is to consist of nine members, all
of whom are appointed by the gov-
ernor.29 The Florida Bar Board of
Governors submits to the governor
three recommended nominees each
for four of the nine spots, but “the
Governor may reject all of the nomi-
nees recommended for a position and
request that the Board of Governors
submit a new list of three different
recommended nominees for that po-
sition who have not been previously
recommended by the Board of Gov-
ernors.”30 In appointing members
to a JNC, the governor “shall seek
to ensure that, to the extent pos-
sible, the membership . . . reflects the
racial, ethnic, and gender diversity,
as well as the geographic distribu-
tion, of the population within the
territorial jurisdiction of the court
for which nominations will be con-
sidered.”31
Prior to 2001, each JNC was
composed of three members of the
Florida Bar who were appointed by
the Board of Governors; three elec-
tors appointed by the governor; and
three electors not members of the
Florida Bar that were selected and
appointed by the other six members
of the commission.32 Because the
24
JNCs were originally conceived as
a way to place a check on the gover-
nor’s power to appoint members of
the judiciary, there was some con-
cern in the legislature that amend-
ing the statute so that the governor
appoints all members of each JNC
would blur the lines between the
executive and judicial branches of
government,33 contrary to the very
purpose behind Florida’s judicial
reform movement in the 1970s.
Currently, JNCs are required to
provide the governor with at least
three but no more than six nominees
for every vacancy on the supreme
court and district courts of appeal.34
“The nominations shall be made
within thirty days from the occur-
rence of a vacancy unless the period
is extended by the governor for a
time not to exceed thirty days. The
governor shall make the appoint-
ment within sixty days after the
nominations have been certified to
the governor.”35
Prior to January 2009, the gover-
nor’s authority to reject the nomi-
nees submitted by the JNC and re-
quest a new slate of nominees had
not been challenged. Recently, how-
ever, events unfolded in Florida’s
fifth judicial district that raised the
question of whether the governor
has the authority to do so.
Fifth District Court of Appeal
Vacancy
In January 2009, the Honorable
Robert J. Pleus Jr. retired from the
Fifth District Court of Appeal.36 He
notified Governor Crist in Septem-
ber 2008, of his impending retire-
ment in order to begin the process of
selecting his replacement in a man-
ner that would maintain continuity
in the operations of the court.37 The
JNC for the Fifth DCA met in No-
vember 2008 and certified six nomi-
nees for the upcoming vacancy.38
Governor Crist rejected the list
of nominees “[i]n the interest of di-
versity on [Florida’s] courts” and
requested that the JNC reconvene,
reconsider the nominations, and pro-
vide a new list of nominees.39 The
commission responded by recom-
continued on next page

OVERVIEW
from previous page
mending the same six nominees,
assuring the Governor that the
nominees were the most qualified
applicants.40 The Governor, again,
asked for new nominees,41 and the
Commission responded that it is
without the authority to withdraw
the nominees previously certified
or submit additional nominees in
excess of the six permitted by the
constitution.42 When Governor Crist
did not appoint a replacement within
the sixty-day time period mandated
by the constitution, Judge Pleus filed
a petition for writ of mandamus in
the Florida Supreme Court request-
ing an order requiring the Governor
to appoint a judge to the Fifth Dis-
trict Court of Appeal from the list of
nominees certified by the JNC.43
The supreme court recently de-
cided this dispute by ruling “the
Florida Constitution mandates
that the Governor appoint a judi-
cial nominee within sixty days of
the certification of nominees by the
Judicial Nominating Commission
for the Fifth Appellate District [and
that] within this process, the Gov-
ernor is not provided the authority
under the constitution to reject the
certified list and request that a new
list be certified.”44
Conclusion
Florida has run the gamut be-
tween giving the governor complete
discretion in appointing members of
the judiciary and allowing the people
to choose all their judges by popular
vote. In an effort to curb the abuses
that developed under both systems,
the legislature adopted a merit se-
lection and retention system to en-
sure that gubernatorial appointees
are first vetted by JNCs that narrow
the governor’s options to those most
qualified to serve on Florida’s judi-
ciary. Although current statutory
law gives the governor the power to
appoint all members of each JNC,
current events demonstrate that it
has not eliminated the possibility of
conflict between the governor, the
JNCs, and Florida’s courts.
(Endnotes)
1 Diana L. Martin is appellate counsel at
Leopold~Kuvin, P.A. in Palm Beach Gardens.
Her practice focuses on state and federal civil
appeals and complex litigation support. Ms.
Martin is a 2002 high-honors graduate of the
University of Florida Levin College of Law
where she was inducted into the Order of the
Coif. Before entering private practice, she was
law clerk to the Honorable Martha Warner at
the Fourth District Court of Appeal.
2 Donna M. Krusbe is appellate counsel at
Billing, Cochran, Lyles, Mauro & Ramsey in
West Palm Beach. Her practice focuses on
state and federal civil appeals and civil litiga-
tion support. Ms. Krusbe was previously a law
clerk to the Honorable George A. Shahood at
the Fourth District Court of Appeal and is a
graduate of the University of Miami School of
Law where she was an assistant editor of the
Entertainment and Sports Law Review.
3 Art. V, § 10(a), Fla. Const. County and cir-
cuit judges are also subject to merit retention
if the merit selection/retention method was
chosen by the people of the applicable jurisdic-
tion in a general election. Id. at §10(b).
4 Art. V, §11(a), Fla. Const.
5 Art. V, §11, Fla. Const. (1838).
6 Id. at § 12.
7 Amendment, Fifth General Assembly, 1850:
Judicial Elections (Article V, Sections 11, 12,
17), §§ 1 & 3; WALTER W. MANLEY II ET AL., THE
SUPREME COURT OF FLORIDA AND ITS PREDECESSOR
COURTS, 1821-1917, 137-40 & 154 (1998).
8 Art. V, §10, Fla. Const. (1865)
9 Id. at §11.
10 Art. VI, §§3 & 7, Fla. Const. (1868).
11 Id. at §3.
12 WALTER W. MANLEY II ET AL., THE SUPREME
COURT OF FLORIDA AND ITS PREDECESSOR COURTS,
1821-1917, 213-14 (1998).
13 Art. V, §8, Fla. Const. (1885).
14 Art. V, §46, Fla. Const. (1942); see also 1941
Florida Committee Substitute For Senate Joint
Resolution No. 334.
15 Art. V, §5, Fla. Const. (1957).
16 Id.
17 Id. at §5(b).
18 Gerald F. Richman, The Case for Merit
Selection and Retention of Trial Judges, FLA.
BAR JOURNAL, Oct. 1998, at 71.
19 Id.
20 In re Advisory Opinion to Governor, 276 So.
2d 25, 28 (Fla. 1973).
21 Art. V, § 11(d), Fla. Const. (1973).
22 Id. at 29.
23 Id. (citation omitted).
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25
24 Id. at 30.
25 Spector v. Glisson, 305 So. 2d 777, 783 (Fla.
1974).
26 In re Advisory Opinion to Governor, 276 So.
2d at 30.
27 Art. V, §11(a)-(b), Fla. Const. (1976).
28 Id.
29 § 43.291(1), Fla. Stat.
30 § 43.291(1)(a).
31 § 43.291(4).
32 §43.29, Fla. Stat. (2000).
33 Representative Doug Wiles made the fol-
lowing statement when voting against the
amendment, “I fear that this legislation will
blur the lines that separate the judicial branch
of government with the executive branch of
government. I hope that I will one day be
proven wrong, however the risk of unintended
consequences far out weigh the potential for
good reforms. In the spirit of political theorist
Baron de Montesquieu, who said ‘there is no
liberty if the power of judging be not separated
from the legislative and executive powers,’ I
cast a no vote.” Journal of the House of Repre-
sentatives, 2001 Regular Session, Number 6,
FL H.R. Jour., 2001 Reg. Sess., No. 6, March
22, 2001, p. 332.
34 Art. V, §11(a), Fla. Const.
35 Art. V, §11(c), Fla. Const. (emphasis add-
ed).
36 February 13, 2009 Letter by William D.
Palmer, Chief Judge of Fifth District Court of
Appeal, http://www.5dca.org/Judges/Palmer/
Gov_Crist_%20letter_Overdue_Appointment.
pdf
37 September 2, 2008 letter by Judge Robert
J. Pleus, Jr., http://tinyurl.com/pleuspetition1,
p.8.
38 November 6, 2008 letter by James H. Fal-
lace, Chair of Judicial Nominating Commission
for Fifth District Court of Appeal, http://tinyurl.
com/pleuspetition1, p. 10.
39 December 1, 2008 letter by Governor Char-
lie Crist, http://tinyurl.com/pleuspetition1, p.
11.
40 November 4, 2008 letter by James H. Fal-
lace, Chair of Judicial Nominating Commission
for Fifth District Court of Appeal, http://tinyurl.
com/pleuspetition1, p. 12-13.
41 January 13, 2009 letter by Governor Charlie
Crist, http://tinyurl.com/pleuspetition2, p. 3.
42 January 21, 2009 letter by James H. Fallace,
Chair of Judicial Nominating Commission for
Fifth District Court of Appeal, http://tinyurl.
com/pleuspetition2, 4-5.
43 Petition for Writ of Mandamus, p. 10, http://
tinyurl.com/pleuspetition1.
44 Pleus v. Crist, 34 Fla. L. Weekly S389 (July
02, 2009).